Remember to be Engaging…in the Interactive Process

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By:  Miriam L. Rosen

 

Who doesn’t want to be engaging?  A recent case is a reminder for employers of the importance of engaging in the interactive process before concluding that reasonable accommodations are not possible.

The Americans with Disabilities Act obligates employers to engage in an interactive process to identify reasonable accommodations once an employee requests a change to their work environment as the result of a disability. On occasion, an employer may reach conclusions about an employee’s ability to perform essential job functions without actually engaging in the interactive process.  This can be a costly misstep.

A recent case provides an example:  An ambulance company employed a diabetic paramedic who experienced four episodes of low blood sugar.  In one incident, the paramedic drove an ambulance erratically before being stopped by police vehicles. During another incident, the paramedic could not administer an IV to a patient while travelling to the hospital.

Following the last incident, the company’s physician performed a fitness-for-duty examination and noted that the paramedic’s medical issue could be addressed with proper insulin management and a period of restricted duty. However, the physician could not “guarantee” that no further incidents would occur.  Without implementing the physician’s suggestions or discussing other possible accommodations with the employee, the company terminated the paramedic based on “medical events caused from [her] diabetes.”

The paramedic then filed a failure-to-accommodate claim under the ADA.  Noting that no evidence existed that the company “ever communicated” with the employee about accommodations or otherwise engaged in the interactive process, the federal district court refused to dismiss the claim and sent the case to trial.

A jury awarded the paramedic $123,500 in back pay and $100,000 for emotional distress. Rednour v. Wayne Township, S.D. Ind., No. 1:13-cv-00320 (7/31/15). The parties reached a private settlement in December 2015 adding $500,000 in attorney fees and future wages for a total payment of just under $725,000.   Commenting on the case, the paramedic’s lawyer noted, “[o]ne of the fundamental issues” was that the employer did not engage in the interactive process to identify a reasonable accommodation.

What are steps that an employer can take to establish that it has engaged in the interactive process to identify reasonable accommodations?

  • Identify the essential job functions that the employee must perform with or without an accommodation. Having a clear, comprehensive, and up-to-date job description is critical to this process.
  • Do not make assumptions about whether the employee can or cannot perform the essential job functions. Rather, engage in a dialogue with the employee about what modifications would help the employee perform the essential job functions. Engage the employee’s physician and other resources as necessary.
  • Consider whether other options for accommodation are available if the suggested accommodations are not reasonable. Remember that accommodations such as a leave of absence or, if available, light duty may allow the employee to perform job functions within a reasonable time.
  • Communicate with the employee about the outcome of the interactive process and possible reasonable accommodations.
  • Document the steps in the process and outcomes to establish that obligations to engage in the interactive process have been met.

This case illustrates the importance of engaging in the interactive process when addressing accommodation issues.   A reasonable accommodation may or may not have existed for the paramedic in this case, but a jury determined that the employer violated the ADA when it did not engage in the interactive process before reaching a conclusion.

This article was written by Miriam L. Rosen, who is a member of the Legal Affairs Committee of Detroit SHRM and Chair of the Labor and Employment Law Practice Group in the Bloomfield Hills office of McDonald Hopkins PLC, a full service law firm. She can be reached at mrosen@mcdonaldhopkins.com or at (248) 220-1342.

Detroit SHRM encourages members to share these articles with others, inside and outside their organization, as long as its name and logo, and the author’s information, is included in the re-post of the article. January 2016.